Welcome and Introduction from the Chairs

Contesting Forum: Developments in the Test for Jurisdiction Simpliciter

Professor Janet Walker, Osgoode Hall Law School, Toronto
Kathryn Podrebarac, Tough & Podrebarac LLP, Toronto

Contests about the proper jurisdiction to hear a matter are often the first and most fundamental issue in cross-border disputes. This session will review the state of the law, including some very recent developments in Ontario, and will provide guidance on how best to argue for or against jurisdiction.

• The Muscutt test revisited: Van Breda, Bouch v. Penny, and other case law developments
• Update on the current test for “real and substantial connection”
• What “connections” are critical – who’s connection to whom or what?
• What presumptions will now operate?
• The role of the Uniform Law Conference model CJPTA
• Provincial statutory schemes and their interaction with the common law
• The rise of “forum of necessity”: what is the role of this doctrine now?
• The relationship between the forum non conveniens test and real and substantial connection
• The concept of “order and fairness”, and its relationship to the real and substantial connection test
• How much residual discretion does the court have?
• What will most effectively influence a court on the real and substantial connection test?
• The role of forseeability by the defendant
• Enforcement/non-enforcement of forum selection clauses in commercial agreements
• How does a forum selection clause interact with the real and substantial connection test?

  - the “strong cause” test
  - changes of circumstance
  - the “Italian torpedo” and other tactical consideration

Forum Non Conveniens: Making Your Most Persuasive Case

Bradley E. Berg, Blakes LLP, Toronto
Robyn M. Ryan Bell, Bennett Jones LLP, Toronto

In virtually all cases where jurisdiction is in issue, forum non conveniens will be argued in the alternative. The current test will be reviewed. In addition, since the test depends so critically on how the law applies to particular facts, this session will also provide the opportunity to work with the presenters through some specific fact scenarios to solidify your understanding of how to identify the factors that are likely to sway the court in your favour.

Part A: The Test and Judicial Interpretation

• The key factors that a court will consider
• Maintaining distinction between jurisdiction simpliciter arguments and forum non conveniens
• Amchem Products and its offspring
• Teck Cominco and other recent cases: what can we learn?
• Examples of how specific factors played greater or lesser roles in particular cases
  

Part B: Sample Cases

The forum non conveniens test applied: the facilitators will work through scenarios with varying fact patterns, allowing you to have an opportunity to see how you might argue – or decide – a forum non conveniens contest.

Determining and Proving the Applicable Law

Paul Michell, Lax O’Sullivan Scott LLP, Toronto

• Enforcement of choice of law clauses
• How choice of law clauses can be challenged
• Sample choice of law clauses – the good, the problematic
• Dealing with pleadings containing mixed causes of action
• Determining the lex loci of torts
• Tips for proving the substantive law: the effective use of legal experts
• Can a party escape a choice of law clause?

Enforcement of Foreign Judgements

Sandra Barton, Heenan Blaikie LLP, Toronto

• Beyond Beals v. Saldanha: update on recent case law developments
• US v. Yemec – is there a defence of “loss of meaningful opportunity to be heard”?
• Denial of natural justice in foreign proceedings: what role does it play?
• Treaties on reciprocal enforcement of judgements

Gathering Evidence Across Borders

Jane Southren, Lerners LLP, Toronto
L. David Roebuck, Heenan Blaikie LLP, Toronto
Michael W. Lacy, Barrister & Solicitor, Toronto
Todd A. Seaver, Berman DeValerio, San Francisco

In cross-border actions, what might normally be straightforward pre-trial procedures of production and discovery can suddenly become considerably more complicated. Strategic decisions arise that can significantly affect the litigation going forward. A panel of experienced counsel will help you recognize the issues and explain how they can be effectively managed, or turned to your advantage.

A. Prosecuting and Defending Foreign Requests for Evidence from Canada

• Prosecuting and defending letters rogatory from US Courts: understanding the procedure and the test that courts will apply
• The effect of deemed/implied undertaking rule and/or confidentiality orders
• Costs issues associated with letters rogatory applications
• Sample precedents
  

B. Making Requests for Evidence from Foreign Jurisdictions for Use in Canadian Proceedings

• Methods for requesting and obtaining access to evidence from the US
• US MDL: limitations on production of documents from depositories when requested for Canadian litigation
• Obtaining evidence from other jurisdictions: UK, European Union, China
• Comparing different procedural options in varying circumstances
  

C. Dangers Arising from Parallel Criminal and/or Regulatory Proceedings

• Cautions: protections and immunities that may not cross borders
• What options do you have when faced with potentially conflicting obligations?
• Application and effect of the deemed/implied undertaking rule
• The effect of Mutual Legal Assistance Treaties (MLATs)
  

D. Other Issues in Cross-Border Evidence Gathering

• Conventions and treaties affecting private international law disputes: additional avenues for gathering evidence, rules you need to be aware of
• Negotiating creative solutions to procedural and production disputes

A Practical Guide to Litigating Class Actions Across Borders

Mike Peerless, Siskinds LLP, London, Ontario
Andrew Morganti, Sutts Strosberg LLP, Windsor
(formerly of Milberg LLP, NY)
Daniel E. Laytin, Kirkland & Ellis LLP, Chicago
Robert Torralbo, Blake, Cassels & Graydon LLP, Montréal

Moderator
Kathryn I. Chalmers, Stikeman Elliott LLP, Toronto

When class actions involve more than one jurisdiction, additional complications can arise that make these files even more challenging for counsel. A panel of experienced class action litigators, from both Plaintiff and Defence perspective, will help sort through this sometimes very tricky terrain.

• Differences in class action certification standards
  - evidentiary standards
  - common issues requirements

• Dealing with the challenges presented by parallel proceedings
  - challenges presented by provincial borders
  - challenges presented by national border
  - what happens when the plaintiffs are in one jurisdiction and the action is in another?
  - problems with procedure, enforcement and notice
  - anti-suit injunctions

• National class actions in Canada
  - do they work?
  - strategies to employ to make them work
  - are they constitutional?

• Issues arising in particular types of actions:
  - competition law class actions
  - securities class actions
  - medical device and product liability actions

Introduction and Overview

Getting the Arbitration Agreement Right

Sonia Bjorkquist, Osler, Hoskin & Harcourt LLP, Toronto

• The imperatives: defining what will be arbitrated, who will arbitrate, and where
• The importance of choosing the right seat: legal and practical concerns in international disputes
• Strategic use of attornment and choice of law clauses
• Private does not always mean confidential: say it if you mean it
• Settling on the ground rules in international disputes (discovery, documents and appeals)
• Addressing costs issues early: who pays now and who pays later?
• Avoiding pathological clauses
• Dealing with 11th hour calls for generic arbitration clauses

Selecting the Arbitral Regime

Marc J. Goldstein, Marc J. Goldstein Litigation and Arbitration Chambers, New York
John A.M. Judge, Stikeman Elliott LLP, Toronto

• What are the differences between ad hoc and institutional arbitration?
• What are the pros and cons of each?
• Why institutional arbitration can be the right choice for some international arbitrations
• A brief overview of the arbitration Institutions: who to consider and why Understanding the Institution’s Rules
  How the nature of the dispute and/or location of parties may influence best institutional choice
• Does the right tribunal assist with enforcement later?
• Educating your client about the options and costs

Steps Before Arbitration

John Lorn McDougall, Fraser Milner Casgrain LLP, Toronto
John A. Terry, Torys LLP, Toronto
Tina Cicchetti, Fasken Martineau DuMoulin LLP, Vancouver

Moderator
Sonia Bjorkquist, Osler Hoskin Harcourt LLP, Toronto

• Dealing with a pathological clause when a dispute arises
• Don’t take a step in the proceeding if you want to arbitrate: what constitutes “a step”?
• Motions to stay litigation: where to bring them and when?
• Choosing an international arbitration tribunal
  - taking or avoiding home field advantage
  - advantages/disadvantages of choosing an arbitrator who is an expert
  - nominating someone with the appropriate legal training in an international arena
• Seeking or opposing interim relief – what may be available, how to get it, and where
• Default proceedings: should you ever not defend?

The Role of the Courts in International Arbitrations

Andrew D. Little, Bennett Jones LLP, Toronto
Andrew McDougall, Perley-Robertson, Hill & McDougall LLP Ottawa

• How far will the courts go to uphold the parties’ agreement?
• Anticipating whether the local courts are “arbitration friendly”
• The importance of the local arbitration legislation in determining the court’s role
• Judicial intervention – what are the parameters, limits?
• Statutory protections you can’t contract out of (e.g. Solicitors Act, etc.); the effect of local laws
• Reviews, challenges, and appeals of arbitral decisions

Arbitration Advocacy

J. Brian Casey, Baker & McKenzie LLP, Toronto
Jim McCartney, McCartney ADR Inc., Calgary

• Written advocacy: memorials, written submissions and evidence in international arbitration
• Will-say statements and witness statements: setting the expectations early when dealing with parties from other legal systems
• Oral advocacy: know your audience: the advantages of using private sector decision makers
• Minimizing evidentiary objections— it’s not a courtroom
• Dealing with limits on length of submissions and oral argument
• Keeping an eye on expense with a view to the tribunal’s jurisdiction to award costs
• Possible avenues for simplifying procedure: Agreed facts? Agreed and pre-marked exhibits?

Enforcement and Recognition of Arbitral Awards

Malcolm N. Ruby, Gowling Lafleur Henderson LLP, Toronto
David R. Haigh, Q.C., Burnet, Duckworth & Palmer LLP, Calgary
Robert Wisner, McMillan LLP, Toronto

• Key recent case law developments:
  - the SCC decision in Yugraneft: what are the implications?
  - the Ont CA Zemensky ruling: does this change the game?
• Limitation periods in international arbitration in light of Yugraneft
• Anticipating enforcement issues in the law of the country where enforcement is desired
• Understanding the role of treaties between the foreign state and Canada or a province
• The New York Convention and the UNCITRAL Model Law